*Pursuant to 5TH CIR. R. 47.5 the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

May 30, 2007

Charles R. Fulbruge III

Clerk

United States Court of Appeals

Fifth Circuit

FILED

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-20732

PHILIP W. GREEN,

Plaintiff-Appellant,

versus

SERVICE CORPORATION INTERNATIONAL,

Defendant-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

(06-CV-833)

Before GARWOOD, BARKSDALE and GARZA, Circuit Judges.

GARWOOD, Circuit Judge:*

Plaintiff-appellant Philip Green brought this suit in the

court below against defendant-appellee Service Corporation

International (“SCI”), seeking actual and punitive damages for its

alleged action in terminating (or causing the termination of) his
2

employment, contrary to the whistleblower employee protection

provisions of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A.

SCI answered, and, inter alia, denied that it violated the

Sarbanes-Oxley Act, and alleged that, under a written agreement

between it and Green, Green was bound to arbitrate his claims

against it. SCI also moved, pursuant to sections 3 and 4 of the

Federal Arbitration Act (FAA), 9 U.S.C. §§ 3 and 4, that the

instant action be entirely stayed pending arbitration of Green’s

claims and that the court order Green to arbitrate same. Green

responded by, inter alia, resisting arbitration, raising certain

challenges respecting the arbitration agreement, and claiming that

SCI had waived any right to insist on arbitration of the dispute.

Green further requested that, should SCI’s motion be granted, the

case be dismissed rather than stayed.

By its June 30, 2006 four page order the district court found

that the parties had agreed in writing to arbitrate a class of

disputes including those raised in this suit and that SCI had not

waived arbitration, and consequently it granted SCI’s motion to

stay and compel, expressly denied Green’s request “that this case

be dismissed rather than stayed,” “ORDERED” that “the parties shall

resolve their dispute through binding arbitration according to the

agreement,” and “ORDERED that the case is hereby STAYED and

ADMINISTRATIVELY CLOSED pending a motion by either party for

further judicial intervention.”
3

Green timely moved for reconsideration and SCI moved to

enforce the court’s June 30, 2006 order compelling arbitration. On

August 17, 2006, the district court, in a two page order, denied

Green’s motion to reconsider. On August 18, 2006, the district

court granted SCI’s motion to enforce, ordering that Green “either

(1)” within 14 days begin the arbitration process pursuant to the

arbitration agreement and expeditiously continue it in good faith

to final resolution, “or (2) in the alternative, to face dismissal

with prejudice of his claims against SCI.” 

The following day Green gave timely notice of appeal.

On appeal, Green asserts that the district court erred in

staying the case pending arbitration, and in ordering the parties

to arbitrate, because no agreement between the parties provided for

arbitration and because SCI defaulted and waived any right to

arbitration. SCI asserts, inter alia, that under section 16(b) of

the FAA, 9 U.S.C. § 16(b), this court has no jurisdiction of this

appeal. 

The case in the district court has not been dismissed and it

remains pending in that court; there is no other pending suit

between the parties and no other action has been stayed or

enjoined.

We dismiss the appeal for want of jurisdiction under section

16(b). This result is clearly mandated by Mire v. Full Spectrum

Lending, Inc., 389 F.3d 163, 165-67 (5th Cir. 2004); Apache Bohai
4

Corp., LDC v. Texaco China, B.V., 330 F.3d 307, 309-10 (5th Cir.

2003). See also, e.g., Terrebonne v. K-Sea Transportation Corp.,

477 F.3d 271, 277 n.9 (5th Cir. 2007); CitiFinancial Corp. v.

Harrison, 453 F.3d 245, 250 (5th Cir. 2006).

The appeal is accordingly

DISMISSED FOR WANT OF JURISDICTION.